May 13, 2011

From the Complaints Desk [For Those About to Rakofsky (We Salute You)]

Lawyers, even the best of lawyers, are only human, no matter what they say. Lawyers, even the most experienced of lawyers, but particularly younger and less experienced lawyers, can and do make mistakes. When mistakes are made, in the law or in any other human activity, it is always to be hoped that the one making the mistake will (1) do whatever can be done to minimize or correct its ill effects on others, and (2) learn something from the mistake while moving on from it.

The "moving on" part is important. At least when they don't lead to your conviction of a crime, nearly all but the most notorious, blazing errors can in time be left behind if only you let time do its work. And, like a scabbed-over wound, most errors will heal themselves more quickly if you will Just Leave It Alone.

In early April of this year, a young attorney made what looks to have been a mistake: as reported in the Washington Post and elsewhere, New Jersey attorney Joseph Rakofsky, less than a year out of law school, took on the defense of a murder trial in the District of Columbia. Per the original Post report, he "exhibited what the judge said were numerous signs that he lacked knowledge of proper trial procedure, including telling the jury during his opening statements that he had never tried a case before." The Court directed a mistrial. Rakofsky, for whatever reason, seemed to boast about the outcome on his Facebook page. Inquiring minds in the legal blogosphere began to inquire, and soon "Joseph Rakofsky" had become a teachable phenomenon, an occasion for fellow professionals to derive what lessons they could about the state of the profession and the Do's and Don'ts of practice, procedure, ethics, marketing, and so on, and to share those lessons with their readers. On April 10, I wrote a bit about it here.

Joseph Rakofsky was a several days' wonder, but that was six weeks ago. Today, even most of those who had read the various original reports and posts would probably not be sparing him a thought. But Joseph Rakofsky will not Leave It Alone. Instead, Joseph Rakofsky has done the thing that we teach people to do in this country when they just won't Leave It Alone.

Joseph Rakofsky has filed a lawsuit, in the courts of the State of New York, seeking damages and injunctive relief based upon defamation and invasion of his civil rights.

He has filed a lawsuit against the Washington Post.

He has filed a lawsuit against other print media and reporters who covered the story.

And yes, I am among those named as defendants–we were dubbed almost immediately the Rakofsky 74–and I am specifically referenced in paragraphs 56, 57, 173, 174 and 188(w). At this writing I have not received service of a summons or other process, and perhaps I never will. Scott Greenfield, a New York practitioner himself, has pointed out that New York's "long-arm statute" contains an explicit defamation exception that should make it difficult or impossible for the court to obtain personal jurisdiction over non-New York defendants. (More on that interesting subject from my respected Canadian co-defendant, Antonin Pribetic, here.)

Prudence dictates against any extensive comment on the merits of this case at this time. Others are having their say, at length and with vigor, and a quick search for "Rakofsky" will surely lead interested readers to the highlights and low lights of that discussion, which they may judge for themselves. I will say that, upon review, I have no qualms about the propriety of what I wrote originally. Such lessons as I drew from the case of Mr. Rakofsky were and are there to be drawn.

As is the lesson with which I started this post: Oscar Wilde found that the road from perceived defamation to litigation led instead to incarceration, and with surpassing swiftness. There is no reason to believe that any fate quite so dire awaits Mr. Rakofsky, but there is also little reason to believe that he has done himself any long-term favors by electing to file suit. Already, in the fewer than 48 hours since his suit came to light, he has resumed his place as a source of merriment and a target of scorn across the Internet. There may be someone out there writing in his support, but I have not seen any sign of it thus far. I'm no clairvoyant, but I have to believe that at some point in his future a chastened Mr. Rakofsky will look back with regret on the course he has chosen this week, and wonder why he didn't or couldn't Just Leave It Alone.